Citation Nr: 18143095 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 15-04 252 DATE: October 18, 2018 ORDER The petition to reopen the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is granted, and service connection for an acquired psychiatric disorder to include PTSD is denied. The petition to reopen the claim of entitlement to service connection for alcohol induced depression is denied. Service connection for plantar fasciitis of the bilateral feet is denied. FINDINGS OF FACT 1. A November 2007 rating decision denied service connection for PTSD and alcohol induced depression; the Veteran did not perfect an appeal. 2. Evidence received since the November 2007 rating decision with respect to the claim of entitlement to service connection for PTSD is new and material. 3. The additional evidence received since the November 2007 rating decision pertaining to alcohol induced depression is either cumulative or redundant of evidence already of record and considered in that decision, and does not raise a reasonable possibility of substantiating the claim for service connection for alcohol induced depression. 4. The Veteran does not have a current diagnosis of PTSD and there is no competent and credible evidence of a psychiatric disorder of service origin. 5. The preponderance of the evidence is against finding that the Veteran has plantar fasciitis of his bilateral feet due to a disease or injury in service. CONCLUSIONS OF LAW 1. The November 2007 rating decision, in which the Regional Office (RO) of the Department of Veterans Affairs (VA) denied service connection for PTSD and alcohol induced depression is final. 38 U.S.C. § 7104(b). 2. Evidence received since the November 2007 rating decision to reopen the claim of entitlement to service connection for PTSD is new and material and the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156 (a). 3. New and material evidence has not been received since the November 2007 rating decision for alcohol induced depression; thus, the claim for service connection for alcohol induced depression is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. A psychiatric disability, to include PTSD, was not incurred in or aggravated by service and psychosis may not be presumed to have been incurred or aggravated therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309. 5. The criteria for service connection for plantar fasciitis of the bilateral feet are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that 38 C.F.R. § 14.630 allows for representation by an individual unaccredited by VA for one time only. In April 2018, the Veteran attempted to appoint his wife, A. K., as his agent and attorney on a notarized form signed only by the Veteran. However, the necessary requirements were not met as a VA Form 21-22a was not submitted, the April 2018 statement was not signed by the representative, and no arrangements for compensation were made. See 38 C.F.R. § 14.630 (a). Also, in April 2018, a duplicate of the Veteran’s April 2007 VA Form 21-22 that appointed Disabled American Veterans as his representative was submitted with the word ‘revoked’ on it and the initials ‘C.E.C.’ In June 2018, VA sent a letter to the Veteran seeking clarification on whom he wanted to represent him in the matters on appeal, yet no response was received. 38 C.F.R. § 14.631 (f)(1) states that an appellant can revoke his/her representative at any time; however, the Board finds that the April 2018 correspondence was not from the Veteran as his initials are not ‘C.E.C.’ Therefore, the Veteran’s April 2007 VA Form 21-22 that appointed Disabled American Veterans as his representative is the last valid submission and in effect. Also, in July 2015, the Veteran failed to report for his scheduled Board hearing. Later that month the Veteran asserted that he did not receive notice of his scheduled Board hearing; however, the VA sent the Veteran notice of his hearing at his listed address in May 2015 and the Veteran responded to the notice later that month, indicating that he wanted a videoconference hearing. As good cause was not shown for the Veteran’s failure to report, the hearing request is deemed withdrawn under 38 C.F.R. § 20.704 (d). New and Material Evidence Prior unappealed decisions are final. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when “new and material evidence” is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). According to the Court, the pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed, unless the evidence is inherently incredible or consists of statements which are beyond the competence of the person making them. Justus v. Principi, 3 Vet. App. 510 (1992); Meyer v. Brown, 9 Vet. App. 425 (1996); King v. Brown, 5 Vet. App. 19 (1993); Duran v. Brown, 7 Vet. App. 216 (1994). Evidence may be considered new and material if it contributes to a more complete picture of the circumstances surrounding the origin of a Veteran’s injury or disability, even where it will not eventually convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010) Thus, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. There is a low threshold for reopening a claim, one that does not require that a claimant submit a medical opinion to reopen a claim if the new evidence causes VA to obtain a medical opinion. 38 C.F.R. § 3.156(a). Rather, if there is newly submitted evidence of current disability which in connection with the prior evidence, raises a reasonable possibility of substantiating the claim, and the element of a nexus could be established by providing a VA examination, the claim may be reopened. That reopening then triggers VA’s duty to assist in providing the claimant with a VA examination. 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for PTSD. In a November 2007 rating decision, the RO denied service connection for PTSD on the basis that there was no evidence of a current diagnosis of PTSD, that there was no evidence that the Veteran engaged in combat, or evidence of a verified in-service stressor. A notice of disagreement was received in November 2007, within the subsequent one-year period, and a statement of the case was issued in October 2008; however, the Veteran did not appeal. Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011). Therefore, the RO’s November 2007 rating decision is final. 38 U.S.C. § 7105. Since the last prior final decision, evidence has been added to the record. The additional evidence of record consists of medical evidence. A June 2011 private physician found that the Veteran had some degree of psychiatric impairment based on his criminal convictions and jail time. The reason for the prior final denial was that there was no evidence establishing evidence of a current diagnosis of PTSD. This recent evidence suggests that the Veteran does have current psychiatric impairment although it does not appear that the examiner is relating such impairment to service. In this case, the medical evidence suggests a basis for service connection. That evidence raises a reasonable possibility of substantiating the claim. The Board finds that new and material evidence has been received since the November 2007 rating decision. Therefore, the claim of entitlement to service connection for PTSD is reopened. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for alcohol induced depression In a November 2007 rating decision, the RO denied service connection for alcohol induced depression on the basis that the condition is due to the abuse of alcohol and primary service connection is not available for the disability as abuse of alcohol or drugs is the result of the Veteran’s willful misconduct. 38 C.F.R. § 3.301. Also, there was no evidence that depression was incurred in or caused by active duty service. A notice of disagreement was received in November 2007, within the subsequent one-year period, and a statement of the case was issued in October 2008; however, the Veteran did not appeal. Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011). Therefore, the RO’s November 2007 rating decision is final. 38 U.S.C. § 7105. Since the last prior final decision, medical evidence has been added to the record. A June 2011 private treatment note found that the Veteran had a history of an alcohol induced mood disorder. A July 2011 private treatment note found that the Veteran’s primary mental health problem was his alcoholism. A July 2014 VA treatment note indicated that the Veteran was criminally charged with driving under the influence of alcohol. He was diagnosed with an alcohol induced mood disorder. The additional medical evidence that pertains to the Veteran’s alcohol induced depression is cumulative, and thus, not new, as it merely shows the continued existence of alcohol induced depression and that there continued to be no evidence that his alcohol abuse disability was acquired as secondary to, or as a symptom of, a service-connected disability. The Board notes that in order to qualify for service connection, the Veteran must establish, by clear medical evidence, that his alcohol or drug abuse disability is secondary to or caused by their primary service-connected disorder, and that it is not due to willful wrongdoing. Allen v. Principi, 237 F.3d 1368, 1376-77 (Fed. Cir. 2001). Further, the evidence is not material because the evidence could not reasonably substantiate the claim were it to be reopened as the evidence does not have any tendency to show depression in service, or that there is clear medical evidence establishing that the Veteran’s alcohol abuse disability is secondary to, or caused by, one of his service-connected disorders. There continues to be absent from the record any new, competent, and credible evidence suggesting that depression developed in service, or that the Veteran’s alcohol induced depression is secondary to, or caused by, one of his service-connected disorders. See, e.g., 38 U.S.C. § 1110; 38 C.F.R. § 3.303. None of the additional evidence, even when considered in combination with the other evidence of record, is new and material. Thus, this evidence does not relate to an unestablished fact necessary to substantiate this claim and does not raise a reasonable possibility of substantiating this claim. The prior denial is final, and the claim for service connection for alcohol induced depression is not reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). There are particular requirements for establishing service connection for PTSD set forth in 38 C.F.R. §3.304 (f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). In order to establish service connection for PTSD, there must be medical evidence of PTSD, medical evidence that establishes a link between current symptoms and an in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. §3.304 (f); Shedden, supra. Corroboration of the stressor is not required when a VA psychiatrist or psychologist diagnoses PTSD resulting from a fear of hostile military or terrorist activity when that fear is consistent with the circumstances of the Veteran’s service. 38 C.F.R. §3.304 (f)(3). Corroboration of the existence of a stressor is also not required in certain circumstances when the Veteran was diagnosed with PTSD in service, the Veteran engaged in combat with the enemy and the claimed stressor is related to that experience, or the Veteran was a prisoner of war and the claimed stressor is related to that experience. 38 C.F.R. §3.304 (f)(1), (2), (4). Corroboration of the existence of an in-service stressor is necessary in all other cases. Reasonable doubt concerning any matter material to the determination is resolved in the Veteran’s favor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for PTSD. The Veteran contends that he has PTSD due to his service in Southwest Asia. The question for the Board is whether the Veteran has a chronic disease that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service, or whether the Veteran has a current psychiatric disorder that is otherwise related to the Veteran’s military service. The Board concludes that the Veteran does not have a current diagnosis of PTSD. In the absence of a diagnosis of PTSD, there can be no valid claim for PTSD. Rabideau v. Derwinski, 2 Vet. App. 141, 143- 44 (1992). Further, there is no competent and credible evidence that the Veteran’s has an acquired psychiatric disorder that had its onset in service or is otherwise related to service. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the Veteran’s claim, and it must be denied. The service treatment records do not reflect any complaints, findings, treatment, or diagnosis of psychiatric disease or injury. There are no records of psychiatric complaints, or diagnosis during the post-service presumptive year. A June 2011 initial evaluation for PTSD was unable to find evidence of PTSD. The Veteran reported having a depressed mood, yet his affect was appropriate, his memory intact, and there was no evidence of mental problems that precluded employment. The physician opined that the Veteran likely met the criteria for a diagnosis of alcohol abuse versus dependence and possibly cannabis abuse based on the veteran reporting excessive alcohol and drug usage. A later June 2011 mental health treatment note indicated that the Veteran had a history of an alcohol induced mood disorder, but no other mental health diagnoses were found. A June 2011 private physician found that the Veteran had some degree of psychiatric impairment based on his criminal convictions and jail time. The physician found that there was an impression of PTSD, yet noted that the VA denied entitlement to service connection for PTSD as the Veteran’s symptoms were not considered to be an impairment due to the VA’s criteria. A July 2011 VA general medical examination found that the Veteran did not have psychiatric issues. In June 2012, the Veteran underwent a VA disability benefits questionnaire (DBQ) for mental disorders. The Veteran was not diagnosed with a mental disorder; therefore, a DBQ for PTSD was not conducted. In October 2014, the Veteran underwent another mental disorders DBQ. The VA examiner found that the Veteran did not currently have a mental disorder. Treatment and evaluation notes reflected long-term substance abuse mood issues as well as numerous criminal convictions and prison sentences for alcohol related charges. While the Veteran is competent to report having experienced symptoms of PTSD, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of PTSD. As a lay person in the field of medicine, the Veteran does not have the training or expertise in medical matters and this issue involves a medical determination that is too complex to be made based on lay observation alone. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. As the preponderance of the evidence is against the claim to service connection for PTSD and any other acquired psychiatric disorder, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Entitlement to service connection for plantar fasciitis. The Veteran contends that his plantar fasciitis of his bilateral feet is related to his active duty service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of plantar fasciitis of his bilateral feet, and evidence shows that he had in-service foot pain issues in 1997, the preponderance of the evidence weighs against finding that the Veteran’s current diagnosis of plantar fasciitis of his bilateral feet is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The July 2011 VA examiner opined that the Veteran’s plantar fasciitis of his bilateral feet is not at least as likely as not related to an in-service injury, event, or disease, including isolated complaints in 1997 regarding foot pain. The rationale was that the Veteran had isolated foot complaints in 1997 regarding plantar fasciitis and that the evidence showed that this had resolved in 1999 and that there were no other foot complaints until early 2011, which suggested recent onset. Further, the Veteran did not remember having any foot problems until 2011. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). VA treatment records show the Veteran was not diagnosed with plantar fasciitis of his bilateral feet until July 2011, years after his separation from service. While the Veteran believes his current diagnosis of plantar fasciitis of his bilateral feet is related to an in-service injury, event, or disease, including his foot pain in 1997, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the July 2011 VA examiner’s opinion. As the preponderance of the evidence is against the claim to service connection for plantar fasciitis, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Costello, Associate Counsel